Criminal Justice and Immigration Bill

I make these points about Amendment No. 140. Although I appreciate everything that noble Lords have said so clearly and eloquently about the development of the law from Palmer in 1971, I submit that there has been a creative, progressive and significant development as a consequence of the cases of Shannon, which was decided shortly after Palmer, if I remember rightly, of Williams (Gladstone) in 1987 and of Beckford in 1988. This development is more than just a gloss; it is an extension of Palmer. Lord Morris of Borth-y-Gest in Palmer did not spell out specifically that a mistaken and unreasonable, albeit genuinely held, belief was nevertheless exculpative of the defendant’s situation. The Beckford and Williams cases, however, clearly state that. I therefore ask the noble and learned Lord to confirm that nothing in the clause in any way casts doubt on the validity of Williams (Gladstone) and of Beckford. If that is the situation, I respectfully submit with regard to Amendment No. 140 that it is not necessary to spell out anything further with regard to this situation. The law can simply be put in this way. There are two tests: an objective test and a subjective test. The objective test is whether an unseen bystander looking at the situation would say, ““Yes, clearly the force that has been used by the defendant in that case was manifestly excessive””—not marginally excessive, but clearly, fundamentally and manifestly so. The second test is that the jury must look at the situation through the eyes and the mind of the defendant and, unless the jury is satisfied that the defendant did not genuinely hold such a belief, the second limb will not have been overcome and the defendant will be entitled to be acquitted. In so far as the Government are considering the situation—I am grateful to them for their chivalry and, indeed, their common sense in this—I ask them to bear in mind that it might be better not to restrict the jury or to try to lead it by the nose to the conclusions that it should reach. I therefore commend for their consideration the principle enshrined in Section 3 of the Criminal Law Act 1967, which considers a person’s intention and foresight in relation to a situation. It is of considerable value to consider the approach enshrined in that provision, which states: "““A court or jury, in determining whether a person has committed an offence,""(a) shall not be bound in law to infer that he intended or foresaw a result of his actions by reasons only of its being a natural and probable consequence of those actions; but""(b) shall decide whether he did intend or foresee that result by reference to all the evidence, drawing such inferences from the evidence as appear proper in the circumstances””." A jury should therefore look at the generality of the circumstances in their totality. To lead the jury by the nose to a certain approach and a way of reasoning might not be altogether helpful.